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Kids on the lawn, and copynorms

There’s an interesting discussion over in John Scalzi’s blog about a new organization called the Organization for Transformative Works, which essentially aims to legitimize fan fiction as first-class expressions safe from copyright challenges. As I write this, there are over 200 comments in response to the opinion by Scalzi (who is a professional author, and whose take on the issue is similar to my own). The opinions run a fairly wide range, some claiming fan fiction is either inherently wrong or inherently protected, but most taking some sort of middle position.

The discussion made me think back to my childhood, growing up in a small town in Connecticut. We lived in a small, fairly new suburban development with farmland and woods around it. A lot of the houses had kids in them our age, and when we got together, we’d often go exploring or playing in yards. Other than the streets themselves, virtually all the land was privately owned. And while we’d often play in our own yards, sometimes we’d go onto someone else’s land, sometimes when the owners weren’t around. One neighbor had a woody area with some paths and little hills that we liked to ride bikes in. Another had a hill in the backyard that was great for sledding in winter. And sometimes you could play in a leftover sandpile or a fallow field in ways you couldn’t anywhere else.

I don’t remember anyone specifically asking if we could play in these places, but it was generally accepted or at least tolerated by the neighbors. There were certain rules: I knew as early as I can remember that some yards were off limits, because the owners didn’t want kids there. And we knew that we’d have to leave immediately if the owner came out and told us to, but that there would be no further consequences, assuming we hadn’t done any damage or otherwise made trouble for the owner. Some of the norms I had to learn by experience. After a scolding (and, I think, a call to my parents) following an “emergency” bathroom break, I learned that entering someone’s yard without asking was one thing, but entering someone’s house without asking was another thing entirely.

Essentially we had a vibrant neighborhood culture built on casual and tolerated trespassing. It was fundamentally a social compact, rather than a legal one. If we kids went too far in infringing on people’s properties, or the adults went too extreme in clamping down, the whole thing would have fallen apart. A homeowner brandishing a shotgun, or a kid defying a request to leave with a “we have a legitimate right to be here!”, or a parent threatening legal action if their kid was hurt in someone else’s yard, would have disrupted things pretty badly.

So I’m looking at the OTW effort with some interest and trepidation. Although I don’t have much interest in “fan fiction” as such, I recognize its value. (Especially since I met a number of friends, including my wife, in a kind of “fan fiction” venue– but that’s a story for another time,) And there’s a good argument to be made that, as long as fan writers keep their work to themselves or to a small, private circle, that it’s fair use.

But once it’s moved online into the public sphere, it seems to me the equivalent of playing in other people’s yards. You hope most people will be fine with it, and it may well even help maintain the social fabric; fan communities, after all, often end up buying lots of the original author’s books. Getting commercial with fanfic, or interfering with an author’s ability to work and make money, would be the equivalent of entering their house or building a booth on their front lawn– Not Done. And ultimately, it’s the author’s right to tell the kids to get off their lawn if they choose. Hopefully, that’s all they’ll want and need to do, and neither they nor the fans will be motivated to raise the stakes.

If you maintain a library, you might want to watch the sort of interaction going on here, even if you don’t particularly care about fanfic. Collection building and public service functions in the digital age often have to negotiate similar gray areas that aren’t neatly covered in law, but have important social aspects. It can be useful to look and see what sorts of practices build up owner and user communities, and what tears them down.

2 thoughts on “Kids on the lawn, and copynorms”

What’s interesting about the story, from a legal perspective, is that if the trespassing was tolerated for a decent amount of time, you trespassers would have had a LEGAL RIGHT to continue doing what you were doing, and even legal recourse against landowners who tried to stop you from crossing their property. This is called an “easement” and it has a long tradition in physical property law. So there is a history of “use it or lose it” for property rights, and when tradition gives an expectation of access, the law actually can shift to protect people who have that expectation, even if they are not the owners of the property.

That’s not to say, of course, that a local community would have relied on law to solve its problems, but it is interesting that the law’s stance on this is not as absolutist as many might assume.

I’d also point out that fair use defense in copyright law is not only for private use. So if you are using the term “fair use” in a legal way, there are actually quite a few fair use arguments for legally protecting things that are of public value, (parody, commentary, education etc), regardless of whether they are kept to a few users or spread widely, used for profit or noncommercial.

If you mean simply that you don’t think it’s fair, the basis for “fairness” here isn’t clear to me (forgive me, I am new to your blog). Personally, I’m not a big believer in artists rights to control the use of works they make public, once it enters the public sphere, especially since all art builds on other art, and making judges decide what level of that is acceptable seems iffy to me (which is what copyright infringement cases do). If the issue is the right to make money, I’m not convinced that fan fiction hurts the author’s ability to make money off their work. But that’s another series of discussions!